After Hobby Lobby

It’s not often that social and corporate conservatives come together, but the five right-of-center justices on the U.S. Supreme Court fashioned exactly this synthesis in their Hobby Lobby decision this week. In a religious freedom case related to birth control, the majority focused on the liberties of the company’s owners, not of those who work for them.

More than that, the justices continued to press their campaign to create an entirely new legal regime under which corporations enjoy rights never envisioned by our Founders or the generations who followed them.

On the same day and by the same 5-to-4 majority, the court ruled in Harris v. Quinn that home health care workers who choose not to belong to a union don’t have to pay the union’s cost of bargaining for a contract. The conservative majority again used the slogans of liberty, this time to undercut the ability of low-paid workers to organize themselves for higher wages and benefits.

In the Hobby Lobby case, the court ruled that because the owners of the $2 billion arts-and-crafts chain believed that certain contraceptives are abortifacients, they could not be required by the Affordable Care Act to include them in health plans supported by the law.

The decision, written by Justice Samuel Alito, is strange in a number of ways. It barely nodded at settling the factual question of whether or not birth control methods such as an IUD are abortion-inducing. While Alito was at pains to say that the case applied only to objections to birth control and not, for example, to “immunizations,” his language (“may involve different arguments”) was vague.

And I loved Alito declaring that the best way to resolve the matter “would be for the government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” Bring on single-payer for contraception! It was a small victory for socialized medicine.

One bit of good news: After first providing a far-too-narrow exemption from the contraception mandate for explicitly religious nonprofits, President Obama came up with an accommodation that provides birth control coverage through alternative means. Alito said the administration’s approach “achieves all of the government’s aims while providing greater respect for religious liberty” and should have been applied to closely held corporations such as Hobby Lobby. Will he and the other conservatives remember these friendly remarks when they rule in future litigation against the Obama contraception compromise?

But above all, there is the very troubling desire of the court’s conservatives -- made manifest in its Citizens United decision -- to let individuals use the corporate form to escape “personal responsibility for the entity’s obligations,” as Justice Ruth Bader Ginsburg put it in her dissent, but then exercise the rights of individuals when doing so is convenient. They want corporations to have it both ways. “One might ask,” Ginsburg wrote, “why the separation should hold only when it serves the interest of those who control the corporation.”

Here, as in the health care workers case, the profound class bias of the court’s majority is there for all to see.

It’s unfortunate that the Obama administration’s initial, parsimonious exemption for religious groups helped ignite the firestorm that led to Hobby Lobby. It might consider this lesson as it moves, rightly, to issue an executive order to ban discrimination against LGBT people by government contractors. I’ve long believed that anti-gay behavior is both illiberal and, if I may, un-Christian.

It would be better still if the House passed the more comprehensive Employment Nondiscrimination Act that cleared the Senate last year on a bipartisan vote and includes a religious exemption. But before it issues its executive order, I hope the administration convenes a broad public consultation with religious groups to explore if there are ways to ban LGBT discrimination that they can live with.

Perhaps key religious groups will refuse to give ground. LGBT organizations may well see any accommodations as selling out fundamental principles. I get this. But the effort is worth making because we don’t need more distracting religious wars that give the right the sorts of openings the court used this week to push us backward.

As we celebrate the 50th anniversary of the Civil Rights Act, it ought to be easy to recognize how often religion has been a progressive force in our national life. Liberals should embrace religious liberty as their own cause. It should not be put to the service of reaction.

Comments

Birth control methods are considered “abortifacient” if they might directly or indirectly make it more difficult for a fertilized egg to implant.

The “natural” birth control method endorsed by the “Magisterium” consists of confining sexual intercourse to that portion of the month when the uterine lining is undeveloped and is unlikely to enable implantation of a fertilized egg. While ovulation is less likely in that portion of the month, it does occur fairly often. (Within the twisted illogic of magisterial birth control the occasional resulting fertilization is essential to its acceptability.) However, “natural” family planning obtains much of its contraceptive effect from the failure of those mistimed fertilized eggs to implant. If the hierarchy were really concerned about ensuring the implantation of fertilized eggs they would not allow this “rhythm” method and its variants at all and would only permit sex at peak fertility.

By the criterion of the result of failed implantation, natural family planning is highly “abortifacient”.

Michael: I have problems with the coherence of the traditional magisterial teaching on birth control as well, but to be fair, I think you are distorting it somewhat. Implantation is not a consideration. The moral issue revolves around acts, the act of intercourse, and whether or not a couple impedes the act in some way for the purpose of preventing its natural outcome, i.e., conception, should that be what nature (or God) would make happen were the act not so impeded. There are new ways of arguing the morality of this, but that's the gist of the problem as Aquinas might have seen it. Pope John Paul II's "theology of the body" referred to the need to keep each act of intercourse, described as the total and unconditional giving of each spouse one to the other, "open to the transmission of life." When a couple practices natural family planning, they refrain from doing this during the time of month when a woman is most likely to get pregnant -- during a certain period leading up to and following ovulation. That's charted out in various ways. But implantation isn't really considered. Now, the Church defines the beginning of human life, as does modern science, at conception, not implantation, since at that moment a totally new genetic entity appears, which is made up of neither all father or all mother cells, but a unique new combination of both. Its move toward the uterus and implantation in its lining is just a milestone along its way to full development, the first major one for sure, but a milestone, not the defining moment of becoming an individual human life.

The notion of identifying in detailed fact or metaphor the "moment" life begins is a fine notion for a debate but one doomed to failure if driven by a belief a convincing, indisputable conclusion will result. In as much as the "defintion" of life is endlessly varied and as likely to mutate as time passes I hardly know how one can convince themselves much less anyone else otherwise.

IMHO, this search for the "moment" life begins is a distraction and a utterly unhelpful one at that.

As for "...implantation isn't really considered." I don't believe a defense for a notion can be supported by the admission of incompleteness on the part of the notion's originator. Without implantation natural childbirth is unlikely. Which is to say bearing in mind the frequent strolls into a world largely disconnected from reality the "abortion" debate too often takes I believe Michael's argument is as valid as any.

"It would be better still if the House passed the more comprehensive Employment Nondiscrimination Act that cleared the Senate last year on a bipartisan vote and includes a religious exemption. But before it issues its executive order, I hope the administration convenes a broad public consultation with religious groups to explore if there are ways to ban LGBT discrimination that they can live with."

The above suggestion in Dionne's piece on the recent trends in SCOTUS decisions seems appropriate and I hope the Obama administration acts on it. Unfortunately, the Administration believes it is on the "winning" side of the gay issues, especially gay marriage, with a majority of Americans apparently favoring the latter, that he may opt to continue his inflexible trajectory.

Jim McCrea, your sardonic comment has a bit of twisted wisdom in it. A Republican takeover of the Senate may further imbed one of the "inflexible trajectories," or it could finally force both the President and Congress into meaningful dialog and possible compromise on a whole range critical isues. The latter posssibility may be wishful thinking. But, the President, as Dionne suggested, might start with an open dialog with the Bishops and members of the conservative Christian communities on the subject of gay rights. It would be a refreshing precedent, and have the benefit of forcing those opposing some of the gay rights initiatives to clarify their positions, even if no compormise is immediately forthcoming.

Obama and Hillary are warm on gay rights, a refreshing correction of a deep historical injustice. To talk of them as "inflexible" is ironic, given the stark raving lunacy of the Tea Party and the resurgent Neocons.

The issue of gay marriage is in the hands of the courts and local politics and is chugging along nicely. If the opponents now seek dialogue with Obama, whom they usually see as the Devil, that is an encouraging sign that they have lost ground.

What it all boils down to is whose definition of abortifacient you wish to work with: the medically accurate one or the one hamhandedly conjured up by non-medical, unmarried, and unscientifically grounded clerics. The facts of the case are that none of the FDA approved drugs or methods meet the ob/gyn accepted definition of abortifacient. That means that Obamacare is not involved in dispensing or paying for abortion inducing drugs or methods. Therefore, the Hobby Lobby case was erroneously based from the git go and (as has been pointed out in many blogs) should have materially weakened their argument. I am glad that priests are usually not physicians. Likewise, I hope that evangelical protestants with no medical knowledge don't make decisions on my behalf.

An issue that the Catholic Church in the US must face is its acceptance of goverment money. Its chrities contract with the government to provide social services. Its universities contract with the government to do research. These institutions accept public (non-Catholic) funds and employ workers of all beliefs. The question we must ask: Can we be the gateway between the public funds received and the choices made by the employees who are paid to provide service to our organizations with these fund?

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About the Author

E. J. Dionne Jr. is a syndicated columnist, professor of government at Georgetown University, and a senior fellow at the Brookings Institution. His most recent book is Our Divided Political Heart: The Battle for the American Idea in an Age of Discontent (Bloomsbury Press).